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GAC gets more power to block controversial gTLDs

Kevin Murphy, January 12, 2012, 10:33:10 (UTC), Domain Policy

While the new version of ICANN’s new generic top-level domains Applicant Guidebook contains mostly tweaks, there’s a pretty big change for those filing “controversial” applications.

The Guidebook now grants the Governmental Advisory Committee greater powers to block gTLD applications based on minority government views.

ICANN has adopted poorly-written, ambiguous text approved by the GAC at its meeting in Dakar last October, which lowers the threshold required to force the ICANN board to consider GAC advice.

The changes essentially mean that it’s now much easier for the GAC to force the ICANN board to the negotiating table if a small number of governments object to a gTLD application.

In the September Guidebook, a GAC consensus objection was needed to force the ICANN board to manually approve controversial applications. Now, it appears that only a single country needs to object.

This is the relevant text:

The GAC advises ICANN that there are concerns about a particular application “dot-example.” The ICANN Board is expected to enter into dialogue with the GAC to understand the scope of concerns. The ICANN Board is also expected to provide a rationale for its decision.

Applications for .gay, of which there are expected to be at least two, will almost certainly fall into this category.

If you’re applying for a potentially controversial gTLD, you can thank the GAC for the fact that your road to approval is now considerably less predictable.

It’s also worth bearing in mind that the GAC is allowed to file an objection based on any aspect of the application – not just the chosen string.

So, for example, if you’re applying for .bank or .pharma and your application falls short of one government’s expected consumer safeguards, you may also see a GAC “concerns” objection.

In cases where the GAC objects to an application, the ICANN board of directors does have the ability to overrule that objection, if it provides its rationale, much as it did with .xxx.

However, .xxx was a special case, and ICANN today is under a regime much friendlier to the GAC and much more nervous about the international political environment than it was 12 months ago.

Make no mistake: GAC Advice on New gTLDs will carry weight.

This table compares the types of GAC Advice described in the Applicant Guidebook published in September with the one published last night.

September Applicant GuidebookJanuary Applicant Guidebook
I. The GAC advises ICANN that it is the consensus of the GAC that a particular application should not proceed. This will create a strong presumption for ICANN that the application should not be approved. In the event that the ICANN Board determines to approve an application despite the consensus advice of the GAC, pursuant to the ICANN Bylaws, the GAC and the ICANN Board will then try, in good faith and in a timely and efficient manner, to find a mutually acceptable solution. In the event the Board determines not to accept the GAC Advice, the Board will provide a rationale for its decision.I. The GAC advises ICANN that it is the consensus of the GAC that a particular application should not proceed. This will create a strong presumption for the ICANN Board that the application should not be approved. The ICANN Board is also expected to provide a rationale for its decision if it does not follow the GAC
Advice.
II. The GAC provides advice that indicates that some governments are concerned about a particular application. Such advice will be passed on to the applicant but will not create the presumption that the application should be denied, and such advice would not require the Board to undertake the process for attempting to find a mutually acceptable solution with the GAC should the application be approved. Note that in any case, that the Board will take seriously any other advice that GAC might provide and will consider entering into dialogue with the GAC to understand the scope of the concerns expressed.II. The GAC advises ICANN that there are concerns about a particular application “dot-example.” The ICANN Board is expected to enter into dialogue with the GAC to understand the scope of concerns. The ICANN Board is also expected to provide a rationale for its decision.
II. The GAC advises ICANN that an application should not proceed unless remediated. This will raise a strong presumption for the Board that the application should not proceed. If there is a remediation method available in the Guidebook (such as securing government approval), that action may be taken. However, material amendments to applications are generally prohibited and if there is no remediation method available, the application will not go forward and the applicant can re-apply in the second round.III. The GAC advises ICANN that an application should not proceed unless remediated. This will raise a strong presumption for the Board that the application should not proceed unless there is a remediation method available in the Guidebook (such as securing the approval of one or more governments), that is implemented by the applicant. If the issue identified by the GAC is not remediated, the ICANN Board is also expected to provide a rationale for its decision if the Board does not follow GAC advice.

It should also be noted that since Dakar the GAC has defined consensus as “the practice of adopting decisions by general agreement in the absence of any formal objection”.

In other words, if some GAC members push for a GAC consensus objection against a given gTLD, other GAC members would have to formally object to that proposed objection in order to prevent the minority view becoming consensus.

It’s a pretty low threshold. The .gay applicants, among others, are going to have a nerve-wracking time.

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